The strange split in the Supreme Court isn’t between conservative and liberal justices – those divisions are always there in some form – but within the court’s conservative majority.
Many of the majority’s five members would like to jettison the conservative principal of incrementalism in favor of a more radical approach to overturning precedents. To his credit – and the country’s benefit – Chief Justice John G. Roberts Jr. won’t go along. His is the meaning of conservatism and, in fact, his approach mirrors the slow-going system that the Founding Fathers wove into the fabric of American government.
To be sure, there are times the court should act swiftly, but they are comparatively few in number. For the most part, the court’s obligation should be to respect not only the legislative process as much as possible but also the precedents it has set in previous cases. By that standard, the court moves cautiously – that is to say, conservatively – in upsetting systems that have been adopted by the legislative and executive branches and upheld by the court.
That painstaking approach is exactly how the Founders wanted the country to function: requiring the assent of two legislative chambers for bills to pass and a two-thirds approval after a veto, for example. It’s why presidents are constitutionally prohibited from declaring war and why the Senate needs to approve cabinet and court nominations. Powers are divided to create hurdles to hasty action.
But the court’s three most conservative justices are in an unseemly hurry. A recent New York Times story counted 13 votes to overrule precedents in the court’s just-completed term, with 11 of them coming from Justice Clarence Thomas (five), Justice Antonin Scalia (four) and Justice Samuel A. Alito Jr. (two). The other two votes to overrule a precedent came from Justices Anthony M. Kennedy and Ruth Bader Ginsburg.
The impulse in some ways mirrors what is occurring throughout the Republican Party, as some members seek to govern by working with Democrats, while others – the tea party – push to torpedo anything that doesn’t mesh with their beliefs. One way is conservative, the other radical.
In that regard, it’s hardly surprising that some members of the court reject the notion of moving slowly. They breathe the same air as everyone else. Why wouldn’t they carry into the court the tendencies that are influencing large sections of the country?
But to understand the influence is not to condone it. Supreme Court justices should be held to a higher standard than the average citizen. Better than most Americans, they understand the role of their institution and the nation’s capacity to absorb changes.
Roberts seems to comprehend the court’s appropriate role. In his actions, he not only preserves the national fabric but helps to guard the court’s own reputation for wisdom. Alito, Scalia and Thomas could take a lesson.